School Dist. No. 37 v. Ætna Accident & Liability Co.

• Decision Date: 08 November 1921
• Docket Number: No. 96612.,96612.
• Citation: 234 S.W. 1017
• Court: Missouri Court of Appeals
• Parties: SCHOOL DIST. No. 37 IN BUTLER COUNTY v. ÆTNA ACCIDENT & LIABILITY CO.

234 S.W. 1017

SCHOOL DIST. No. 37 IN BUTLER COUNTY v. ÆTNA ACCIDENT & LIABILITY CO.

No. 96612.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Rehearing Denied December 9, 1921.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by School District No. 37, in Butler County, Mo., against the Ætna Accident & Liability Company, otherwise known as Ætna Casualty & Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, Lew R. Thomason, and Robt. E. Moloney, all of St. Louis, for appellant.

Atkinson, Rombauer & Hill, of St. Louis, for respondent.

BIGGS, C.

This is an action at law in two counts based on separate alleged breaches of a bond given to the plaintiff school district by the firm of Lewis & Kitchen, who were under contract with the district to furnish and install a heating system in its high school building, and which bond was given for the fulfillment of the contract, and was signed by the defendant as surety. The action was originally instituted in the Butler county circuit court, but, on account of the disqualification of the judge, the venue was changed to the Cape Girardeau court of common pleas, where, upon a trial before the court, a jury being waived, judgment was given for plaintiff on the first count for $1,339.50, and on the second count for $533.52, being the amount sued for.

The defendant brings the cause here for review, claiming that the evidence was insufficient to show any breach of its bond and contract, and that therefore its demurrer to the evidence should have been sustained.

The facts are these: Plaintiff school district, through its board of directors contracted with the firm of Lewis & Kitchen, contractors to have them furnish all materials and perform all the work for the installation of a heating and ventilating system in the new high school building of the district. At the same time the defendant executed and delivered to the school district its bond in the sum of $7,290 signed by Lewis & Kitchen and the defendant, the material parts of which are, viz.:

"Now, if the said Lewis & Kitchen shall well and truly perform and fulfill all and every the covenants, conditions, stipulations, and agreements in said contract mentioned to be performed and fulfilled, * * * and shall keep, the said school district of Poplar Bluff, Mo., harmless and indemnified from and against all and every claim, demand, judgment, liens and mechanic's liens, costs and fees of every description incurred in suits or otherwise, that may be had against them or against the buildings to be erected under said contract, including such alterations and additions and shall repay the said school district, all same of money which they may pay to other persons on account of work and labor done or materials furnished on or for said buildings, * * * then this obligation shall be void; otherwise the same shall remain in full force and virtue." (Italics ours.)

Thereafter the C. A. Burton Machinery Company, under contract with Lewis & Kitchen as a subcontractor, sold and delivered to said firm two boilers and fixtures, which were used in constructing and installing said heating system, and which were thereafter accepted and are now in use in said building. Thereafter the Ell-Kay Manufacturing Company, as subcontractor, under contract with Lewis & Kitchen, sold and delivered to said Lewis & Kitchen certain goods, wares, and merchandise, as per itemized account shown in evidence, and which were to be and were in fact installed in and formed a part of the heating and ventilating system of the building.

The firm of Lewis & Kitchen became bankrupt, and failed to pay these subcontractors as agreed. Thereafter the Burton Machinery Company brought suit against the members of the board of directors of the district for damages, based on the failure of the board to require the contractor to execute a bond to such district conditioned for the payment of all material used in such work as required by section 1040, R. S. 1919.That cause was finally determined in favor of plaintiff by the Springfield Court of Appeals, it being before that court twice. Burton Machinery Co. v. Ruth et al., 194 Mo. App. 194, 186 S. W. 737; Id., 196 Mo. App. 459, 194 S. W. 526. That court held that the bond referred to was not such a bond as was required by the statute, and neither was it such a common-law bond as gave any protection to the plaintiff subcontractor and materialman, and directed that plaintiff, by reason of the board having failed to perform its ministerial duty as required by section 1040, was entitled to a judgment against the members of the board personally for the amount of its claim. After this litigation had been determined, the board of directors of the district, the personnel of which had been changed to some extent in the meantime, paid the claim of the Burton Machinery Company, and also the Ell-Kay Manufacturing Company, out of the funds of the district. The Springfield Court of Appeals construed the contract and bond as giving to the Burton Machinery Company, subcontractor, no right to make claim upon the bond., inasmuch as the contract and bond were not drawn in such a way to give to the subcontractors protection and permit them to sue thereon. The district as stated paid these subcontractors for the material which was furnished by them, and which it is conceded entered into and became a part of the heating and ventilating system. Thereupon the district brings this suit direct upon the bond signed by the defendant for the sums of money paid by it to these subcontractors, the first count of the petition being based on the amount paid the Burton Machinery Company, and the second count upon the amount paid the Ell-Kay Manufacturing Company.

After the firm of Lewis & Kitchen were adjudged...